Judges, Conservatives, Liberals: We Are All Activists

I’ve written on defining “activism” before but this op-ed in today’s New York Times is superb, as an op-ed and as an argument for why U.S. Supreme Court Justice Antonin Scalia is as activist as was the late U.S. Supreme Court Chief Justice Warren Burger. From professor of law, Geoffrey R. Stone (University of Chicago – yeah yeah yeah where President Obama taught) who also is an editor of The Supreme Court Review, just an excerpt (I recommend reading the full piece, it’s not that long or dense):

Whatever one thinks of these decisions, it should be apparent that conservative judges do not disinterestedly call balls and strikes. Rather, fueled by their own political and ideological convictions, they make value judgments, often in an often aggressively activist manner that goes well beyond anything the framers themselves envisioned. There is nothing simple, neutral, objective or restrained about such decisions. For too long, conservatives have set the terms of the debate about judges, and they have done so in a highly misleading way. Americans should see conservative constitutional jurisprudence for what it really is. And liberals must stand up for their vision of the judiciary.

The only thing I disagree with is that very last line – all jurists should stand up for their vision of the judiciary, but they should admit that their decisions affect the law – and that that action of making legal decisions, in and of itself, is activist.It is almost the pure definition of activist – being a judge itself is an activist action: you are acting on a stalemated or undecided, lacking conclusion situation brought forward through the legal system.

I’m not convinced that I want to suggest that we pit liberal jurists against conservative jurists indefinitely and by definition. In fact, if anything, I’d love it if we could be in a world where we just have really excellent jurists – sans the liberal and conservative prefixes. But we may be way too far gone to ever re-establish that precedent, if ever it really existed (as some who have written about Justice Stevens’ retirement have suggested).